| People v Nichols |
| 2010 NY Slip Op 06893 [77 AD3d 1339] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Justin Nichols,Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered July 29,2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolenproperty in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, ofcriminal possession of stolen property in the third degree (Penal Law § 165.50). We reject thecontention of defendant that the plea colloquy is insufficient to establish each element of the crime towhich he pleaded guilty and thus that reversal is required. It is well settled that "an allocution based on anegotiated plea need not elicit from a defendant specific admissions as to each element of the chargedcrime" (People v Goldstein, 12 NY3d295, 301 [2009]). Here, defendant responded in the affirmative when he was asked whether hepossessed a stolen vehicle and whether he knew that the vehicle was stolen. Under the circumstances,defendant's additional comment "at some point in time" in his response to the latter question did notrequire further inquiry by County Court inasmuch as that additional comment did not "cast significantdoubt upon defendant's guilt of [the] crime" (People v Farnham [appeal No. 1], 254 AD2d767 [1998], lv denied 92 NY2d 949 [1998]). Rather, the "allocution shows that the defendantunderstood the charge[ ] and made an intelligent decision to enter a plea" (Goldstein, 12 NY3dat 301, citing People v Fooks, 21 NY2d 338, 350 [1967]). Also contrary to the contention ofdefendant, he was not entitled to a hearing on his pro se motion to withdraw his guilty plea. Thecontentions of defendant that he was innocent and that the plea was coerced by defense counsel arebelied by defendant's statements during the plea colloquy (see People v Farley, 34 AD3d 1229, 1230 [2006], lv denied 8NY3d 880 [2007]).
Finally, defendant was not denied effective assistance of counsel (see generally People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).Although defense counsel requested a continuance to enable her to call a witness at a pretrialidentification hearing who in fact would have provided testimony that was beneficial to the prosecution,the record establishes that she properly attempted to remedy that error when she did not ultimately callthat witness to testify. Indeed, defense counsel objected when the prosecution requested permission tore-open the hearing in question [*2]to present the testimony of thatwitness. Present—Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.